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Illinois Public Media

Illinois Supreme Court Considers Abortion Law

September 20, 2012

An old anti-abortion law that's never been enforced was argued before the Illinois Supreme court on Thursday. It would require girls aged 17 and younger to tell their parents 48 hours before ending a pregnancy.

The American Civil Liberties Union brought the case, but it was thrown out by a lower court. Now the ACLU is asking the Supreme Court for another shot.

Illinois is thought of a dark-blue state -- solidly Democratic -- where anti-abortion laws have not found a lot of success in recent years.

The state's parental-notification law has a long, tortured history that predates the blue period -- it was passed in the mid-1990s, when Republicans briefly controlled the Illinois House. But since then, it has been dormant.

The law ordered the Supreme Court to create what's called a "judicial bypass" -- rules that would allow a girl to ask a judge to let her out of having to notify her parents before getting an abortion. However, the justices declined to write those rules -- so a federal court permanently blocked the law from going into effect.

There was a brief political firestorm, but that blew over. Fast forward 10 years. That's when Justice Robert Thomas -- then the chief justice -- asked his colleagues to revisit the issue.

This time, the court unanimously changed course, issuing the rules and paving the way for the law to finally take effect. That led to a new round of legal battles and injunctions.

"In passing this act, the legislature assumed that abortion imposes serious and long-lasting medical and psychological harms, and that minors are incapable of making fully-informed medical decisions," Chaiten said.

Chaiten said that decision by lawmakers was wrong. In fact, she said new studies and research show there is a consensus in the medical community that the opposite is true.

"Plaintiffs allegations show that abortion is far safer from a physical perspective than carrying a pregnancy to term," Chaiten said. "Indeed, it is one of the safest procedures in contemporary medicine, safer than having an injection of penicillin."

Justice Thomas asked Chaiten, "Are you asking this court to sit as some type of super-legislature and determine the merits of the new studies that you've presented?"

Not at all, Chaiten said.

The problem is that the ACLU never had a chance to prove its case in a trial. Instead, a lower court judge dismissed it, relying on a federal decision that says parental notification laws are OK under the U.S. Constitution, but the ACLU argues the Illinois Constitution has special protections that are not in the federal constitution -- like an explicit right to privacy, and a statement on gender equality.

Chaiten said that means her original case should not have been dismissed. She wants the chance to have a trial.

"We can put on our evidence," Chaiten said. "The defendants can put on evidence. The circuit court can appropriately evaluate expert testimony and determine whether the infringement on this fundamental right can be justified."

Arguing in defense of the law was Solicitor General Michael Scodro, who is the top appellate lawyer for state government.

He argues a trial is not necessary because the constitutionality of parental-notification laws has already been settled by the U.S. Supreme Court. He said there is no legal basis for an absolute right to an abortion.

"The U.S. Supreme Court has made clear time and time again that the fundamental right is not the right to an abortion per se," Scodro said. "It's a right -- the right that's protected -- and vigorously protected -- is the right not to have the state unduly burden that decision."

Scodro said the Illinois law has exceptions that allow girls in unusual circumstances to get out of having to tell their parents -- medical emergencies, cases of abuse, and that judicial bypass that caused all the fuss in the '90s. He added as long as those protections are in place, the Illinois law does not present an "undue burden" on minors seeking abortions.